I. Introduction
Conflict resolution and human rights are inseparable when it comes to the well-being of human communities. Both are underlying ingredients to bringing about lasting peace. Neither can stand alone nor bring about tranquility of order. Thus, human rights or justice[1] and conflict resolution or peace[2] are mutually inclusive. In principle, justice must not be sacrificed for peace, and the opposite is true. Simply, peace cannot operate without justice and vise versa.
But balancing or reconciling these two things—human rights and conflict resolution—can present a major challenge. At times it can be very difficult to ensure a peaceful marriage between conflict resolution and human rights. While it is essential to consider peace and justice together, to think about ending conflict and punishing human rights violators at the same time may be very challenging. What if the quest for accountability derails the efforts to stop the killings? The need for peace is paramount. If mediators trumpet plans to arrest the leaders of combatants for their crimes, or if human rights advocates call for accountability during peace negotiations, it would be a serious blow to peace-making efforts. Therefore, efforts to draw combatants to the negotiating table might ignore the need to bring those combatants who committed crimes to justice. At the same time, however, allowing perpetrators to go unpunished is international law’s capitulation to criminals.
The scope of this essay is, therefore, to examine the inherent tensions between human rights and conflict resolution, and to suggest some viable ways to balance these two things in the quest for sustainable peace. To conceptualize the arguments, first, the paper gives an overview of the perspectives of conflict resolution practitioners. In the second section, the paper examines the arguments and perspectives of human rights advocates. In the third section, in order to ground the arguments on actual cases where human rights and conflict resolution have clashed, the paper discusses the case of the International Criminal Court’s (ICC) indictments of the Lord’s Resistance Army (LRA) in northern Uganda, and the ICC indictments’ implications to the peace efforts, which were intended to stop the killings and put an end to the 23 year old bloody conflict. Finally, the paper suggests some viable alternatives that might help address the tension between human rights and conflict resolution during conflicts like that of northern Uganda.
II. Why do Human Rights and Conflict Resolution Clash?
The fundamental differences between human rights and conflict resolution can be reconciled, although it is difficult. As Mertus and Helsing argue, the differences in views between human rights advocates and conflict resolution practitioners are “in outlook how much to do with the setting of priorities.”[3] Nevertheless they clash when both want to prevail at the same time when dealing with conflicts. It is necessary to get the right combination of human rights and conflict resolution, without jeopardizing the legitimate rights for justice of victims in one hand and the interest of society, which is to end conflict and to stop the killings, on the other hand. Conflict resolution practitioners and human rights advocates have different views on this issue and try to legitimize their stance in dealing with conflicts. The following two sub-sections will present these different views and perspectives of conflict resolution practitioners and human rights advocates.
1. The Conflict Resolution Perspective
The conflict resolution perspective is championed by people “who focus on resolving, managing, preventing, or transforming violent conflict.”[4] The principal goal of conflict resolution practitioners is “to help the parties in a conflict to achieve a settlement while decreasing the overall level of violence. Over the long term, they try to facilitate improved relations between the parties in a conflict so that those parties will be in a better position to resolve or de-escalate future conflict before it turns violent.”[5] For them, the priority is silencing the guns and ultimately ending the violence.
Conflict resolution often brings parties to the negotiations who have committed appalling atrocities, war crimes, and crimes against humanity. While peace negotiations or ceasefire talks are in progress, calling for investigations of human rights violations committed by the negotiating parties, or putting justice and accountability issues on the table, can risk putting the negotiations or efforts to stop fighting back to square one, if not derailing them altogether. In such a case, pushing parties to sign a peace agreement and implementing it would be difficult.[6]
An ideal example for this fact is the dilemma faced by negotiators during the Dayton peace negotiations of October-November 1995 that were aimed at ending the conflict in Bosnia-Herzegovina. The participants of the Dayton negotiations included some of the notorious personalities of the conflict, including President Milosevic, suspected of atrocities.[7] While the international tribunal on war crimes in Bosnia called for the arrest of President Milosevic for the crimes he had committed, mediators refused to do so. The U.S. officials “were privately saying that the Dayton talks might not go as far in guaranteeing the arrest of indicted war crimes suspects.”[8] U.S. officials knew that without the participation of those suspected for atrocities, the peace efforts would be jeopardized. Recognizing this reality, on October 31, 1995, on the eve of the Dayton peace negotiations, President Clinton said, “Only the parties to this terrible conflict can end it.”[9] Similarly, the leading American negotiator at Dayton, Richard Holbrook, said that it was not his role to judge President Milosevic’s “protestations that he neither knew nor condoned the Srebrenica,” and he went on to say, “you can’t make peace without President Milosevic.”[10] Therefore in Dayton, the negotiators faced a rebuke from the human rights community for allowing President Milosevic to participate in the negotiations and instead of arresting him.[11] The human rights community blamed the international community, especially stronger states like the U.S., for focusing on negotiations by disregarding international principles and promises of upholding human rights violators accountable during the war in Bosnia.[12]
Conflict resolution practitioners do not label parties in the conflict “criminals” or “human rights violators” because such labeling could jeopardize ceasefire or peace negotiations and could definitely escalate the conflict. Instead they “relish the freedom to focus on the process of bringing people in conflict together without issuing judgments declaring victims and offenders, as these terms may inhibit groups in conflict from fully participating in the process.”[13] Their goal is one of creating bridges of communication between adversaries and helping them to come closer to each other and talk. For this purpose, the guiding principle for conflict resolution actors in dealing with adversaries is impartiality that would increase their access to the parties of the conflict.[14]
Conflict Resolution specialists do believe that human rights are vital ingredients to promoting sustainable peace. However, they treat human rights as “a peripheral issue,” and often view them as “a by-product of peace, not as a major component for building peace.”[15] They want to stop the killings first because once human life is lost, it cannot come back. Conflict resolution practitioners see the chaos of the continued killing and believe that their mission is to stop the bullets.[16] Mertus and Helsing propose the idea that “after the violence has stopped will there be any possibility for advocacy for human rights—hostilities must cease before peace with justice can become a viable objective.”[17] Similarly, Tonya L. Putnam asserts that realization of peace is necessary for vigorous promotion of justice and protection of fundamental human rights.[18]
The arguments and worries of conflict resolution practitioners are reasonable. If conflict resolution practitioners put issues of human rights and accountability on the table in their efforts to end the violence and negotiate a peace agreement, they would cultivate nothing and heighten the conflict. Perpetrators often do not hesitate to escalate the conflict and continue committing horrible crimes if their interests and fears are not considered. Perpetrators could seek guarantee that if they agree to negotiate, they will avoid prosecution for their crimes. If they do not feel secure or if they think that they might be brought to justice for crimes they committed, they can stall any efforts to stop the fighting. If the peace talks or efforts to stop killings fail because of the interference of justice and accountability issues, certainly there is no quick fix or it may not be easy to bring the parties to the negotiating table again and make them to stop fighting. Eventually suffering of innocent people would continue unabated. Then, who would be blamed for the continued fighting and increased death toll? Putnam asserts that if peace efforts fall apart and fighting continues because of human rights advocates’ insistence for accountability, then there would be no moral justifications for the additional lives lost.[19]
2. The Human Rights Perspective
The human rights perspective is commonly espoused by human rights lawyers, individuals and organizations “that work to promote respect for human dignity and that stress the importance of exposing the truth about governmental [rebel and individual] abuses and bringing an end to injustices.”[20] Human rights advocates view human rights largely through the lens of international law and international human rights law. At the same time, “they tend to be highly sensitive to the suffering of victims and perceive themselves to be advocates or agents on victims’ behalf.”[21]
Human rights advocates call for respect of human conscience and “advocate adherence to the highest possible human rights standards.”[22] For them, this approach is an integral part of their legitimacy. Putnam argues that human rights advocates push for the expansion of international human rights instruments and as a result put more emphasis on the importance of “achieving formal expression of human rights provisions in the body of peace settlements.”[23] Human rights advocates believe that adherence to international human rights law and its implementation is non-negotiable regardless of its political implications, even during peace negotiations. This phenomenon was evident during the Dayton peace negotiations in 1995, when Prosecutor Richard Goldstone said that his team would not be deterred from gathering evidence of human rights violations by the negotiating parties. He was quoted as saying, “we are interested in building a body of legal evidence regardless of the political consequences.”[24]
Human rights advocates believe that there can be no peace without justice and accountability. For these advocates, it is impossible to end violence and attain a workable peace agreement without addressing issues of human rights violations and crimes committed during conflicts. Explaining this fact, Mertus and Helsing observe that “cease-fires and peace agreements that ignore human rights often perpetuate inequities and denial of human rights, leading to greater suffering and violence. Sustainable peace depends on assurance of human rights.”[25]
Christine Bell argues that ignoring issues of justice and accountability in peace negotiations can be perceived as rewarding “aggression and ethnic cleansing.”[26] Echoing Bell’s argument, Schirch also points out, “some human rights activists express concern or object when human rights violators are allowed to take part in peace settlements, since it appears to reward their brutality and legitimize their tenuous authority, which they may have achieved in the first place through violent means rather than community support.”[27]
Human rights advocates see violations of human rights as causes of conflict. Ellen Lutz recognizes that continuous human rights abuse can force victims to resort to violence to reclaim their rights, unless they believe that there is peaceful alternative.[28] Echoing this argument, Mertus and Helsing say that the “neglect or dismissal of human rights demands can raise the stakes from low-intensity conflict to high-intensity conflict … the daily abuses that are part of systematic government oppression may initially leave citizens feeling insecure and powerless, but at the same point those citizens may conclude that the only possible response to a violent system is violence.”[29] Therefore, if issues of human rights are not addressed alongside efforts to resolve the conflict, then there is a high probability the conflict will erupt again. Whenever human rights abuses are left unaddressed in the context of ending violence, they can set “the stage for future conflicts because unredressed past grievances are so easy to manipulate.”[30] Ending conflict without providing justice cannot be sustained and eventually fails. Human rights issues “are not simply something that may or may not be abridged or enforced amid or after a conflict; they are often what the conflict is about.”[31] Therefore, for human rights advocates, failure to address human rights violations parallel to peace efforts obstructs peace-making and conflict prevention efforts.
The arguments of human rights advocates are as legitimate and reasonable as are those of conflict resolution practitioners. Issues of justice or accountability cannot simply be ignored because of their clash with conflict resolution efforts. First, failure to hold perpetrators accountable for their crimes while they have blood stains on their hands might encourage individuals or groups to commit more crimes because they feel they also will not be caught. Failing to punish these criminals can send the wrong message: that militants or rebels could commit atrocities with impunity, then negotiate a settlement without fear of being held accountable.
Secondly, allowing perpetrators to get away with murder is mind-boggling injustice for the victims or the affected communities. How is it possible to turn away from those victims deeply affected by the crimes? Lutz points out that “most human rights abuses cause victims to suffer some degree of psychological trauma.”[32] So how is it possible to ignore the sorrow of those who spend sleepless nights because of horrible traumas and memories of crimes committed against them? Is it fair or comprehensible to ignore the sorrowful cries of those too weak to make their voices for justice heard, and to instead tell them their cries for justice can be an obstacle for peace? These victims might prefer justice and retribution to reconciliation.[33] They might seek reparations, compensations, and even punishment of the perpetrators. For example, expressing public sentiments about the human rights violations committed in Bulgaria during the Zhivkov regime, Richard Lewis Siegel says, “There was much to “never forget,” and for which to seek justice against living perpetrators.”[34] As Siegel further points out, there is “a solid rationale for the right of victims, under the authority of a broad array of human rights instruments, to restitution, compensation, rehabilitation, and more.”[35] So, is it fair to tell victims to forget the “never forget” crimes committed against them? Is it fair to override the right of victims and ignore their cry for justice?
Thirdly, not holding criminals responsible for the crimes would prove a fatal blow to international law, accountability, human rights law, and regional and international criminal courts. Impunity or failure to punish perpetrators for their crimes can be seen as capitulating to the criminals, who violated the dignity of their fellow humans. Whitewashing the crimes against humanity committed by atrocious groups like the Lord’s Resistance Army (LRA), or irresponsible governments like that of President Milosevic of Bosnia, would severely undermine the entire notion of accountability and human rights law.
Fourthly, if the international community, especially the UN and regional organizations, lets ethnic cleansers and criminals go unpunished, it would undermine its credibility as a protector and guarantor of international principles and human rights, and encourages perpetrators to commit more crimes. In the case of Bosnia, Gaer observes that “the unwillingness of the international community to uphold the principles it proclaimed emboldened the ethnic cleansers and warriors to conduct both atrocities and military battles for “facts on the ground,” thereby prolonged the peace negotiations.”[36] Perpetrators would think that the international community does not uphold its responsibility to punish human rights violators, and as a result would ignore peace accords and would not hesitate to commit more crimes.
Finally, if we look at it from the point of conflict transformation, letting criminals go with impunity undermines the legitimacy and durability of the peace process. It can jeopardize the prospects for reconciliation and nullify hopes for a just peace.
III. The Case of northern Uganda
The dynamics in the northern Uganda conflict and the indictments of the International Criminal Court (ICC) of the Lord’s Resistance Army (LRA) commanders there present an ideal example for the aforementioned tension between ending a conflict and holding perpetrators of mass violence accountable for their crimes. It seems that the ICC’s indictments against the top commanders of the LRA now stand in the way of a final peace deal that many northern Ugandans hoped will end the 21 year old violence there.
In 2005 the ICC found that the LRA had committed crimes against humanity and war crimes and gave arrest warrants for five LRA commanders, including Joseph Kony, the head of the group.[37]The indictments came at a time when optimistic efforts to bring the LRA and the government of Uganda to the negotiating table were under way by Betty Bigombe, a former Uganda government minister. The ICC indictments came as a shock to Bigombe and her team, as they would undermine their efforts, and she asked the ICC to call off the indictments. Many northern Ugandans expressed their frustration, saying that ICC indictments are going to “make it very difficult for the LRA to stop doing what they are doing.”[38]In addition northern Ugandans argue that “the issuing of international arrest warrants would practically close once and for all the path to peaceful negotiation as a means to end this long war, crushing whatever little progress has been made during these years.”[39]Since the ICC gave its indictments against them, the LRA commanders have repeatedly stated that the withdrawal of ICC indictments is a precondition to a permanent ceasefire and sustained peace process.
What the northern Ugandans feared has already come. After long and exhaustive peace talks in Juba, South Sudan, the LRA and the government of Uganda signed a ceasefire agreement in early February 2008.[40]However, the LRA leaders have insisted that the ICC must drop the indictments. The LRA has threatened to derail the ceasefire and return to fighting unless the ICC immediately backs off. Although the LRA leaders signaled that they want to stop fighting, they have refused to negotiate a lasting peace agreement because they feared ICC indictments.[41] Despite pessimism and anger about its indictments among many Ugandans, mainly the badly affected people of the north, the ICC has refused to drop its indictments. Eventually the ceasefire agreement and further peace efforts had failed to produce concrete results. The LRA has resumed its killings creating terror among people not only in northern Uganda but also in the Eastern Congo and the Central African Republic (CAR). As a result, northern Ugandan people are still living in fear and a danger of continued violence.
Community leaders and ordinary people in northern Uganda have been urging the ICC to call off its indictments and to give a chance for peace, which is the immediate need of the people there.[42]Is advocating for justice a priority, while peace is far from realization? Even if the ICC and the Ugandan government managed to catch the LRA commanders and put them to trial, it does not mean that the conflict and atrocities are over. There is the possibility that their followers, most of them kidnapped child soldiers who also already committed atrocities, would also organize themselves and continue the ugly history of the bloody conflict out of fear of prosecution as was the case for their commanders. Thus, justice without peace is unattainable. But if the ICC backs off and officially suspends its indictments for the sake of ending the violence, it would not mean that it is the end of accountability. Northern Ugandans have been advocating that they would use their own dignified traditional and indigenous justice peace and justice making mechanisms to insure accountability.
However, human rights organizations like Amnesty International, Human Rights Watch, and other members of the human rights community have been supporting the ICC indictments of the LRA commanders and calling for the implementation of these indictments. Amnesty International praised the ICC indictments as a “first step, which should be part of a comprehensive plan to end impunity.”[43] Amnesty International also strongly opposes the adoption of amnesty for such crimes, saying that amnesties for crimes under international law are prohibited and are direct violations of international law.[44]Likewise, they argue that “the Court, which is mandated to bring to justice to those accused of the worst crimes known to humanity, would have no power to revoke arrest warrants on grounds that it might assist political negotiations to end the armed conflict.”[45]Amnesty International believes that justice and peace should prevail at the same time. However, Amnesty International is purely based on standardized legal system and does not consider the fear of local people in northern Uganda who have suffered already.
Some human rights activists argue that the ICC indictments “may have prompted the LRA to partake in peace negotiations.”[46]According to these activists, peace should be accompanied by justice; otherwise it will not be sustainable. Thus, the ICC indictments should be implemented despite the political ramifications. Pro ICC indictments have been saying that perpetrators should not be above the law and that by punishing the LRA criminals, the ICC would bring justice to northern Uganda.[47]
According to Tim Allen, some people in the internally displaced people’s camps (IDPs) in northern Uganda express the need for punishing the perpetrators even though these people do not want to say it openly because they fear revenge by the LRA if their words reach the LRA fighters.[48]Of course it is natural that victims would like to see punishment of perpetrators, but, at the same time, they are worried about the implications of such punishments. Formal indictments and punishments might worsen the conflict and prompt the LRA to comitt atrocities.
Despite intense criticism, the ICC still argues that assuring justice and accountability is important to end the conflict in northern Uganda. The ICC believes that “peace and justice should continue to be viewed as mutually reinforcing objectives.”[49]This means that the ICC believes that its arrests of warrant are not obstacles to the peace process.
Opposition to the ICC indictments is not without reason. First, as mentioned above, ICC indictments may not stop the violence and may allow the LRA to continue atrocities because they know that if they come back home they will be arrested and punished. In addition, it seems that the human cost of arresting the LRA commanders might be devastating. For example, the Ugandan government forces fought for years to kill or catch the LRA, but did not succeed and only increased human suffering. And the ICC cannot provide civilian protection once the indictments are made. Thus, someone could argue that efforts to implement the ICC indictments would add fuel to the already flaming fire and increase the number of victims. The second and foremost reason is that the Acholi people of northern Uganda insist that they have their own indigenous traditional peace and justice making mechanisms. They want to use their mechanisms to end the conflict. They argue that their traditional mechanisms are more compatible with their culture and the realities of the conflict than the standardized and rigid modern criminal law.[50]
The arguments by opponents of the ICC indictments are legitimate and convincing. It is reasonable to ask the ICC to give peace a chance because it is more important to save civilians than to judge perpetrators. Given the nature of the conflict, realizing peace and justice through the ICC and formalized, rigid international law might be tough. The immediate need of the people in northern Uganda is ending the conflict and stopping the killings. Justice could come later, through the use of traditional justice making mechanisms.
And yet, the arguments by the supporters of the ICC indictments are also sound and legitimate. Advocating for justice and peace at the same time seems like the best option. No one wants perpetrators to go unpunished. The ICC was not designed to obstruct peace efforts, but to complement peace, at least in principle. The Court’s first indictments ever issued should be seen as a victory for advocates of justice everywhere and for the victims of such crimes. This is exactly what the ICC was created for—to end impunity and punish individuals who commit heinous crimes against humanity. The implementation of the ICC’s indictments of the LRA leaders represents a key step in both enhancing the legitimacy and staying power of the young international court and achieving a just peace in northern Uganda. But the situation in northern Uganda is not that simple. It is a situation where the demand for justice threatens human safety, and as a result, most northern Ugandans, including those in IDP camps, live in fear and despair and simply want the war to end.
Therefore, in northern Uganda the tension between peace making and justice is evident more than any other place. The case shows the daunting challenges of balancing and integrating peace and justice. The different views or perspectives by conflict resolution practitioners and human rights advocates discussed in previous sections can be seen clearly in this case. Because of the lack of compromise from both sides, the situation there is still not promising. Undoubtedly, if the ICC continues to call for the arrest and punishment of the LRA commanders, the commanders will not come out from the bushes and probably will continues fighting and commit further atrocities. On the one hand, the ICC has been an obstacle to the opportunity for a negotiated peaceful settlement that northern Uganda has had only once in 21 years history of the conflict. On the other hand, the northern Ugandan case, which is the first ICC case since its conception, will effectively place the court on trial. Similarly, it will put the international community who established the court believing it would end impunity on trial. Dropping ICC indictments and submitting to the demands of LRA criminals, who have been maiming, raping and killing innocent people, would send a dangerous message worldwide and would be a serious blow to the imperatives of justice and accountability.
If the ICC fails in this first experiment in international criminal justice, it will not only be a betrayal to the victims of the LRA crimes, but may also undermine the credibility of the ICC. It might put in jeopardy efforts to end crimes against humanity, war crimes and genocide in other countries.For example, the ICC has already given indictments to three war criminals in Darfur, including President Omar al-Bashir of the Sudan. So if the ICC drops its indictments for LRA commanders, the perpetrators of the atrocities in Darfur may try to bargain for impunity and the same tension between accountability and peace making could materialize in Darfur.
Hence, the ICC and the international community are faced with a frustrating dilemma. The question is, what can be done to balance both accountability for crimes and end the conflict in northern Uganda? Is it possible to integrate both human rights and conflict resolution in a way that serves both interests? The next section will suggest some viable alternatives that might help reconcile the tension between human rights and conflict resolution in general and the northern Ugandan case in particular.
IV. Reconciling and Balancing Human Rights and Conflict Resolution
As discussed in the case of northern Uganda, there is a significant tension between human rights and conflict resolution. However, there is no doubt that both human rights advocates and conflict resolution practitioners would like to establish a just peace and promote human dignity. Human rights advocates and conflict resolution practitioners have more in common: “a fundamental commitment to maximizing human dignity and minimizing civilian harm.”[51] But these groups disagree on how to weigh peace versus justice and how to respond to today’s changing nature of conflicts.[52]
The tension between accountability and ending conflict needs to be addressed based on recognition of a fair settlement that serves both interests. For example, in the ICC case in northern Uganda, how could peace efforts and need for accountability be balanced and craft a middle ground where the interests of peace and justice are served? There is a possibility to create a middle ground upon which human rights and conflict resolution can agree. Therefore, this paper suggests some viable alternatives that might help to combine human rights and conflict resolution together and balance them in dealing with the nature of today’s conflicts. These include: 1) consideration of indigenous and traditional justice, 2) timing, 3) use of modified language with regard to human rights issues during peace negotiations, 4) crafting viable human rights advocating tactics that fit with the realities to the conflict setting, and 5) application of restorative justice. The following sub-sections will discuss these in detail.
1. Consideration of Indigenous and Traditional Justice
According to the Rome Statute, the ICC is a court of last resort. This means its core tenet is the notion of complementarity.[53]It can only intervene if there is no local court that could investigate or prosecute and serve justice. Someone might argue that Ugandan national courts might complement the ICC. However, such national criminal proceedings would only work with some confidence in their integrity and due process from both sides. The problem with this scenario is that the LRA commanders will not agree to prosecution plus imprisonment as a potential sanction in the Ugandan national courts. Given the nature of the LRA commanders and their demand for amnesty,the possibility that they would consent to such an outcome seems unrealistic. Hence, with some reforms in the system in order to deal with such a major case, application of traditional justice systems can be an option in northern Uganda.Many northern Ugandans have favored a traditional justice to persuade LRA leaders to leave the bush and to be reintegrated to the society.[54]The LRA commanders might be more comfortable with the local traditional justice making mechanisms.
Application of traditional justice in regions where it is still relevant can serve both human rights and peace-making at the same time. Traditional justice can provide a situation where peace and justice prevail together. This type of community based justice enjoys a high level of credibility and acceptance amongst local populations in many parts of Africa. Traditional justice encourages high participation of local people, emphasizes relationships within communities that have been badly damaged by conflict, and restores those relationships by reintegrating the offenders into society. After admitting their guilty, acknowledging their crimes, and telling the truth, offenders pass through traditional cleansing ceremonies led by notable elders, religious leaders and community leaders. Then the offenders are pardoned by the victims and rejoin the society. This kind of justice avoids hatred and mistrust among people and morally binds people to emphasize relationships over punishment and revenge.
Traditional justice therefore balances the need for peace and accountability and ensures continuation of culture of forgiveness and integrity within the society. Since decisions on how to implement justice are made by the communities who have to live with the consequences of those decisions, traditional justice can satisfy the society.Therefore, giving a chance to traditional justice is a better option in the case of northern Uganda.
The application of traditional justice requires suspension of the ICC indictments. It has been clear that the ICC lacks the capacity to execute the warrants and arrest the LRA commanders without causing more civilian atrocities and killing child captives. Without having such capacity, it seems that the ICC’s demand for international standards of justice are simply too high, or self-defeating, in the case of northern Uganda. And I do not think that it is consistent with the goals and purposes of international law if the ICC sticks with its indictments of the LRA commanders even if the LRA threatens to continue the conflict and killings. For the good of the majority, the ICC has to suspend its indictments. I do not agree with those who call upon the ICC to drop the indictments because doing so would undermine international law, jeopardize the credibility of the ICC itself, and it would be difficult for the ICC indict the LRA commanders again in case they do not stop violence and accept the traditional justice. But I suggest the ICC should suspend the indictments and give a chance to the traditional justice making mechanisms of the local people.
2. Timing
Timing is a very important factor for balancing human rights and conflict resolution. Human rights advocates should not expect to play a direct part in peace negotiations, or at least they should not demand their work to be directly incorporated in the peace efforts or peace settlements if the incorporation of human rights concerns breaks peace efforts and spoils the prospects for peace.[55] For example, the ICC gave its arrest warrants to the LRA commanders while peace efforts were underway. When the LRA learned about the indictments, they refused to continue the peace talks and threatened to resume atrocities. The timing of ICC indictments of the LRA commanders was not wise. The ICC should have waited until the parties signed a peace agreement and the conflict ended. Therefore, human rights advocates should wait for the right time to avoid jeopardizing efforts to stop killings. Once the conflict is resolved to the degree that it would not erupt again, then justice can be served. There should not be a rush to accountability while peace is at stake. Let peace prevail first and justice will follow. This is a win-win solution. If fighting stops, several lives will be saved and once peace prevails, the justice can be served for the victims. Wherever the perpetrators go, they cannot escape from justice. But once conflict erupts because of the demands for prosecution and if killings continue, there is no moral ground to defend those deaths inflicted upon innocent civilians.
3. Use of modified language with regard to human rights issues during peace negotiations
Conflict resolution practitioners should address some human rights abuses using specifically-modified language instead of using rigid and standardized language of human rights provisions. Christine Bell argues that “the application and integration of rights and justice are negotiable in the context of a negotiated settlement.”[56] Therefore, using modified and flexible language, mediators or conflict resolvers can incorporate human rights issues in a way that their incorporation would not intimidate negotiators and jeopardize negotiations. They can interpret the standardized language of human rights provisions as it fits to the settlement. As Putnam argues, mediators could identify the human rights issues where the parties are willing to compromise and agree to without any pressure.[57] Once they identify these human rights issues that the parties are willing to accept, mediators could incorporate those issues to the settlement and use them for further concessions.
In addition, mediators and conflict resolvers can make the combatants feel a sense of moral respect for human rights and convince the parties that respect of human rights can be a potential tool for legitimizing their demands and a source of credibility for their cause. But all these factors should be in a friendly manner without any threat. To do so, it is important to develop a sense of confidence and a relationship among mediators and the negotiators from both sides.
4. Crafting Viable Human Rights Advocating Tactics that fit with the Realities to the Conflict Setting
Putnam articulates that international human rights organizations should follow different tactics in their efforts to promote human rights in the early stage of post conflict situations than those tactics they use during peacetime human rights violation.[58] Putnam’s argument could also be applied during peace efforts that are intended to end ongoing conflicts. Human rights organizations pressure governments and draw international attention about human rights violations in order to push governments to respect human rights. These tactics might not work during wars, especially civil wars and intrastate conflicts where there are no ways to enforce human rights provisions or pressure the warring parties. Following formal and standardized human rights structures to expose human rights violations by combatants might not work well; instead it might exacerbate efforts to end the conflict.
It is difficult to legally enforce human rights provisions during conflicts. Enforcement institutions often do not function enough to deal with human rights violations during intrastate conflicts.[59] For example, in the case of northern Uganda, the ICC has no enforcement mechanisms to implement its indictments against the LRA commanders. In such cases, advocating for formal and standardized human rights provisions would be self-defeating, and would undermine future legal enforcements of human rights provisions.[60]
Therefore, human rights organizations should recognize that promoting human rights during conflicts requires different tactics that would enable them to address issues of justice without being a stumbling block to peace. Human rights organizations should devise tactics that fit with the realities to the conflict setting, tactics that put into consideration local justice mechanisms, cultures, religion and related social structures. Instead of advocating for rigid and standardized human rights provisions, human rights advocates should also consider using applicable local resources to promote human rights during conflicts. But this does not mean that human rights advocates should ignore international law or human rights law. It is just doing the same thing differently; it is applying international law and human rights law flexibly and informally in a way that fits with the situation.
5. Application of Restorative Justice
In areas where there are no traditional justice mechanisms, consideration of restorative justice during conflict resolution efforts can be the best compromise for victims and perpetrators. Schirch observes that “the philosophy and practice of restorative justice can help bridge the tension between human rights and conflict transformation concerns in the postwar context.”[61] The benefit of considering restorative justice is that it provides opportunities for victims, offenders, and community members to come together to discuss the crime and its aftermath. It motivates perpetrators to take steps to repair the harm they have caused, without being subjected to harsh punishment. As Schirch points out, this kind of justice avoids coercive pressures and provides offenders with an opportunity to reflect upon their deeds and give legitimacy to their claims to be discussed and helps them to understand the implications of their crimes.[62]
Most importantly, restorative justice reunites victims and offenders to live together in peace by acknowledging and forgiving past misdeeds. Therefore the use of restorative justice can be a useful compromise where peace and justice are served together. Consideration of restorative justice in peace efforts “can help build a bridge from the coercive power of the legal system toward the persuasive processes of conflict transformation and its goal of reconciliation.”[63] Thus, this kind of justice can motivate perpetrators to negotiate and end conflict because they know that they will be forgiven by acknowledging their crimes.
V. Conclusion
This paper set out to examine the inherent tensions between the assertion of human rights and accountability versus the imperatives to stop the killing and resolve the conflict and to suggest some guiding principles or alternatives to balance human rights and conflict resolution in order to create a just peace. The paper concluded that there is no doubt that there are inherent tensions between the assertion of human rights and the need to secure peace. Using the case of the ICC indictments of the LRA commanders and its consequences in northern Uganda, the paper showed thatthe insistence on accountability for blatant human rights violations could indisputably jeopardize the peace efforts intended to stop the killings and end the violence. Advocating for accountability during peace efforts might spoil negotiations, especially if the negotiators are suspects of human rights violations like the LRA in the northern Uganda case. The paper also found that peace efforts that ignore crimes committed by negotiators and make concessions on issues of accountability as a means to stop the bullets could prove fatal for the redressing massive human rights violations and systematic atrocities. A peace agreement that is achieved without addressing issues of justice might be converted to a cold peace deal—a peace deal incapable of warming up and improving relationships among people in post-conflict period. Hence, balancing the assertion of human rights and accountability with efforts to stop the killings and end the conflict can be a real dilemma and the nature of the dilemma is clearly frustrating.
Although both conflict resolution and human rights have a common goal—promoting human dignity and well-being of human communities—they often clash on how to promote this goal at the same time. As Mertus and Helsing argue, the question is which should prevail first.[64] It is a question of priority. According to Schirch, “At times the relationship looks like quarreling siblings named justice and peace, battling for primacy and status at each other’s expense.”[65] Even so, the need to find a middle ground, where human rights (justice) and conflict resolution (peace) can be reconciled, is painfully self-evident.
The paper identified five viable principles or alternatives that might be helpful to reconcile and balance human rights and conflict resolution. These alternatives could reaffirm the obligation to provide accountability and allow sufficient flexibility to achieve both peace and justice. However, these alternatives might not bring the fairest outcome or the perfect balance. What these alternatives ensure is a compromise that serves the interest of the public in a better way. This means balancing peace and justice using the proposed five alternatives would represent the best way that serves the interest of peace without jeopardizing the right of justice of the victims. In short, such balancing of peace and justice can best be explained as “winning some and losing some”.[66]
[1]Human rightsand Justice will be used interchangeably in this paper.
[2]Conflict resolutionand Peace will be used interchangeably in this paper.
[3]Julie A. Mertus and Jeffret W. Helsing. “Exploring the Intersection between Human Rights and Conflict,” in Human Rights and Conflict: Exploring the Links between Rights, Law, and Peacebuilding, ed. Julie A. Mertus and Jeffret W. Helsing, (Washington, D.C.: United States Institute Peace Press, 2006), 8
[4]Mertus and Helsing, 5.
[5]L. Ellen Lutz. “Understanding Human Rights Violations in Armed Conflict,” in Human Rights and Conflict: Exploring the Links between Rights, Law, and Peacebuilding, ed. Julie A. Mertus and Jeffret W. Helsing (Washington, D.C.: United States Institute Peace Press, 2006), 30
[6]Mertus and Helsing, 8
[7]Anonymous, Human Rights in Peace Negotiations (Published in Human Rights Quarterly 18.2 (1996) 249-258) htt://muse.jhu.edu/journals/human-rights-quarterly/v018/18.2anonymous.html
[8]Anonymous, Human Rights in Peace Negotiations (Published in Human Rights Quarterly 18.2 (1996) 249-258) htt://muse.jhu.edu/journals/human-rights-quarterly/v018/18.2anonymous.html
[9]Ibid, 3.
[10]Ibid.
[11]L. Ellen Lutz, 34.
[12]Felice D. Gaer, UN-Anonymous: Reflections on “Human Righst in Peace Negotiations. (Published in Human Rights Quarterly 19.1 (1997) 1-8) htt://muse.jhu.edu/journals/human-rights-quarterly/v019/19.1gaer.html
[13]Lisa Schirch. “Linking Human Rights and Conflict Transformation: A Peacebuilding Framework,” in Human Rights and Conflict: Exploring the Links between Rights, Law, and Peacebuilding, ed. Julie A. Mertus and Jeffret W. Helsing (Washington, D.C.: United States Institute Peace Press, 2006), 80.
[14]Christine Bell. “Human Rights, Peace Agreements, and Conflict Resolution: Negotiating Justice in Northern Ireland,” in Human Rights and Conflict: Exploring the Links between Rights, Law, and Peacebuilding, ed. Julie A. Mertus and Jeffret W. Helsing (Washington, D.C.: United States Institute Peace Press, 2006), 346.
[15]Mertus and Helsing., 9
[16]Anonymous, Human Rights in Peace Negotiations (Published in Human Rights Quarterly 18.2 (1996) 249-258) htt://muse.jhu.edu/journals/human-rights-quarterly/v018/18.2anonymous.html, 3.
[17]Julie A. Mertus and Jeffret W. Helsing., 8
[18]Tonya L. Putnam. “Human Rights and Sustainable Peace,” in Ending Civil Wars: The Implementation of Peace Agreements, ed. Stephen John, Donald Rothchild and Elizabeth M. Cousens (Boulder/London: Lynne Rienner Publishers, 2002), 239.
[19]Putnam.
[20]Mertus and Helsing, 5.
[21]Lutz, 30.
[22]Bell, 346.
[23]Putnam, 238.
[24]Anonymous, Human Rights in Peace Negotiations (Published in Human Rights Quarterly 18.2 (1996) 249-258) htt://muse.jhu.edu/journals/human-rights-quarterly/v018/18.2anonymous.html, 6.
[25]Mertus and Helsing, 7.
[26]Bell, 346.
[27]Schirch, 79.
[28]Lutz.
[29]Mertus and Helsing, 5.
[30]Lutz, 28.
[31]Lund, Michael S. “Human Rights: A Source of Conflict, State Making, and State Breaking,” in Human Rights and Conflict: Exploring the Links between Rights, Law, and Peacebuilding, ed. Julie A. Mertus and Jeffret W. Helsing (Washington, D.C.: United States Institute Peace Press, 2006), 39.
[32]Lutz, 29.
[33]Anonymous, Human Rights in Peace Negotiations (Published in Human Rights Quarterly 18.2 (1996) 249-258) htt://muse.jhu.edu/journals/human-rights-quarterly/v018/18.2anonymous.html
[34]Richard Lewis Siegel. “Transitional Justice: A Decade of Debate and Experience” Human Rights Quarterly. Johns Hopkins University Press. (1998) (431-454.), 8.
[35]Ibid, 13.
[36]Gaer.
[37]Tim Allen. Trial Justice: The International criminal Court and The Lord’s Resistance Army (New York: Zed Books Ltd, 2006).
[38]Allen, 86.
[39]Ibid, 85.
[40]Grace Matsiko, “Juba talks: The bumpy ride to peace in north,” SundayMonitor, February 27, 2008,http://www.monitor.co.ug/artman/publish/inside-politics/Juba-talks-The-b...
[41]Patrick Corrigan. “Uganda: Why the ICC Must Stop Impeding Juba Process,” The Monitor, 27 July 2007, http://allafrica.com/stories/200707270595.html
[42]Allen.
[43]Allen, 83.
[44]Amnesty International, “Uganda: Amnesty International Calls for an effective alternative to impunity”, AI Index: AFR 59/004/2006 (Public), News Service No: 203 (4 August 2006) URL:<http://web.amnesty.org/library/Index/ENGAFR590042006?open&of=ENG-UGA>
[45]Ibid.
[46]Pham, P. et al (2005), "Forgotten Voices: A Population-based Survey on Attitudes about Peace and Justice in Northern Uganda," International Center for Transitional Justice and Human Rights Center, University of California Berkeley (2005) URL: <http://www.reliefweb.int/library/documents/2005/hrc-uga-25jul.pdf> [accessed 02-22-06], 18.
[47]Tim Allen, 144.
[48]Ibid.
[49]International Criminal Court, “Submission of the Information on the status of the execution of the warrants of the arrest in the situation in Uganda”,No:ICC-02/04-01/05(public) ,(6 October 2006) URL:<http://www.icc-cpi.int/library/cases/ICC-02-04-01-05-116-English.pdf>
[50]Allen.
[51]Mertus and Helsing, 8
[52]Mertus and Helsing, 9
[53]Allen.
[54]Allen.
[55]Putnam.
[56]Bell, 348.
[57]Putnam.
[58]Ibid, 237.
[59]Putnam.
[60]Ibid.
[61]Schirch, 82.
[62]Ibid, 83.
[63]Ibid.
[64]Mertus and Helsing, 8
[65]Schirch, 63.
[66]Putnam, 237.
